Military courts in a democratic South Africa: in search of their judicial independence

Tshivhase, Aifheli Enos

Military courts in a democratic South Africa: in search of their judicial independence

Doctoral Thesis

2012

Publisher

University of Cape Town

Department

Department of Public Law

Faculty

Faculty of Law

Abstract

The new constitutional era in South Africa has brought fresh demands on all institutions of society. The South African military justice system has not been spared. The pressure to transform this system has also been fuelled by a wave of reform of military justice systems in other democratic Commonwealth jurisdictions. In this thesis, I evaluate South African military courts against the basic requirements of judicial independence as interpreted by the Constitutional Court and relevant international bodies. In doing so, I draw on my experience of working in military courts as defence and prosecution counsel respectively in the South African National Defence Force. I conclude that all forums of military justice (including the Commanding Officer’s Disciplinary Hearing) do not meet most requirements for judicial independence. Military judges lack security of tenure; financial security; institutional independence on important administrative aspects; and their institutional impartiality is questionable. I further investigate a suitable model of judicial independence for South African military courts in the democratic era. I propose a new model guided by the following: relevant principles of constitutional and international law relating to judicial independence and the right to a fair trial; emerging foreign trends; and most importantly, military uniqueness and operational effectiveness.

Description

Includes bibliographical references.

Keywords

Public Law

Reference:

Collections

PhD / Doctoral

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